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[2014] NSWCATOD 103
NCAT Occupational
2014-09-24
Original judgment source is linked above.
reasons for decision 1This is an application for review of two decisions made by the RMS in respect of refusal of a bus driver authority and cancellation of Mr Sunol's taxi driver authority. 2The first application for review was lodged on 19th September 2013 in the ADT. This sought review of the RMS's decision made on 30 August 2013 to refuse Mr Sunol a bus driver authority. 3On 3rd January 2014 Mr Sunol lodged a second application for review in NCAT (the tribunal). This was an application to review a decision of the RMS to cancel his taxi driver authority on 6th December 2013.
Background to applications 4Mr Sunol had lodged his application for a bus driver authority on 28 May 2013. The Respondent decided on 16th August 2013 to refuse him a bus driver authority. Mr Sunol sought internal review of that decision and on 30th August 2013 the Respondent finalised its internal review and affirmed the decision to refuse Mr Sunol a bus driver authority. 5The Respondent had made the decision on the basis that Mr Sunol's past behaviour and his failure to declare his previous history as a driver, that is his suspensions as a taxi cab driver, meant that the RMS could not attest to Mr Sunol being a fit and proper person for the purposes of the Passenger Transport Act 1990. 6Both decisions of the RMS relied upon the fact that the RMS could not attest to Mr Sunol being of good repute or a fit and proper person to drive a public passenger vehicle. 7The 2 applications seeking to review the 2 decisions of the RMS were heard together by the tribunal on 29th May 2014. The evidence of Mr Sunol's repute and his fitness and propriety was the same in each matter. 8The tribunal's reasoning refers to the first application before it in relation to Mr Sunol's application for a bus driver authority. The tribunal's findings relate equally to Mr Sunol's application for review of the RMS's decision to cancel his taxi driver authority.
Background 9The background to the matters is set out in the Respondent's Statement of Reasons on internal review dated 30th August 2013. A summary of and extracts from the Statement of Reasons are set out below.
Summary of Respondent's Statement of Reasons 30 August 2013 in relation to refusal of bus driver authority. 10Mr Sunol was first issued with a taxi driver authority on 6 August 2003 and was authorised to drive taxis in the Newcastle and Wollongong Metropolitan and country areas of NSW. 11Between 2005 and 2012, RMS received the following complaints about Mr Sunol's conduct:
Matters in April-May 2012 13On 3 April 2012 two undercover officers from the RMS noted that during their journey in Mr Sunol's taxi that he made a general comment to the officers about 'Muslims and gays' 14On 30 April 2012 RMS advised Mr Sunol of the requirement to undergo a Remedial Training Course which was designed to provide him with knowledge on appropriate conduct for drivers of taxi-cabs whilst on duty. 15On 30 May 2012 a complaint was received from an anonymous person in relation to 'driver not behave in order/civil manner'. It was alleged that Mr Sunol made comments with respect to homosexuality. The passenger terminated her journey early as the comments made her uncomfortable. 16On 2 July 2012 Roads and Maritime Services issued Mr Sunol with a Notice to Show Cause in relation to receiving a total of nineteen complaints (ten of which were found to be justified) and the inappropriate comments displayed on his "blog". 17Mr Sunol responded in writing to the Show Cause letter on 19 July 2012. The delegate decided to suspend his driver authority on 30 July 2012. 18Mr Sunol had not completed the Remedial Taxi driver training course he was directed to attend in July 2012. He was again advised in writing of the requirement to attend the course on 19 November 2012. 19Mr Sunol paid on 1 August 2012 to attend the Remedial Training Course. He applied for an internal review of the decision to suspend his taxi driver authority but was advised on 13 August 2012 that the decision was affirmed. 20Mr Sunol appealed this decision with the Administrative Decisions Tribunal (ADT). An urgent stay of decision was granted on 8 August 2012 and his driver authority was reinstated. The matter was listed for hearing on 27 August 2012 but Mr Sunol did not attend the hearing. The matter was heard on 4th September 2012 and the ADT reinstated Mr Sunol's driver authority. 21On 19 November 2012 RMS received a letter from Mr Sunol stating due to ill health and on doctor's advice, Mr Sunol would not be attending the remedial training course. 22RMS suspended Mr Sunol's driver authority again on 29 November 2012 due to his failure to attend the training course.
RMS's reasons for internal review decision 23The delegate referred to the requirements of section 11 of the PTA which require that prior to issuing an authority for the holder to drive a public passenger bus the RMS must be satisfied that the applicant is of good repute and in all other respects fit and proper to be the driver of a public passenger vehicle. 24To be of 'good repute and in all respects a fit and proper person' to drive a public passenger vehicle, the community must have confidence that a driver would behave appropriately at all times and comply with the rules and regulations governing public passenger transport. Mr Sunol's previous history as a taxi driver showed a betrayal of the confidence the community instils in the driver of a public passenger vehicle and demonstrated that he was not fit to hold a public passenger vehicle driver authority. 25The fact that Mr Sunol had an extensive complaint history recorded against him may indicate that members of the public do not have confidence that he would behave appropriately when driving a public passenger vehicle. 26His previous complaints history bears on his reputation and raises questions as to whether he has sufficient responsibility to drive a public passenger vehicle in accordance with law and custom. 27In determining "public interest" one has to formulate it in terms of the perceptions of "a reasonable member of the travelling public". It is likely that a reasonable member of the travelling public would regard Mr Sunol's previous history as sufficient to refuse his application for an authorisation. 28In view of the nature of Mr Sunol's behaviour, his failure to declare his previous history as a driver, RMS could not attest that he was a fit and proper person for the purposes of the Passenger Transport Act 1990.
The section 58 documents 29The RMS provided extensive files in its section 58 documents. These documents included matters relating to Mr Sunol's activity on his blog. The RMS set out decisions that had been made by the Administrative Decisions Tribunal finding that Mr Sunol had engaged in homosexual vilification contrary to the Anti-Discrimination Act. Although he had been required by the Tribunal to apologise for his behaviour and to desist from publishing homosexually vilifying material he had continued to do so and had been subject to further complaints against him in the Administrative Decisions Tribunal and, during 2014, in NCAT. At hearing, the RMS relied upon Mr Sunol's failure to comply with the decisions of the Tribunal as evidence of his bad repute and also a lack of fitness and propriety. This behaviour demonstrated that he was unable to comply with the directions of authority. Further his undertakings in relation to his future behaviour could not be relied upon.
Mr Sunol's evidence and submissions 30Mr Sunol had responded to the RMS's show cause letter. He also provided 2 submissions to the tribunal dated 29th November 2013 and 29th November 2013. He also gave oral evidence to the tribunal. 31Mr Sunol's statement of 29th November 2013 is set out below. I believe that I am a fit and proper person to drive a public vehicle as I have 12 points on my licence and no criminal record. Taken from the other files I had a large number of these files are false reports due to me being in the local news over a couple of cases totally irrelevant to the Taxi or bus. But the people I am fighting were very nasty towards me and have written lies to a great number of people to get my taxi license revoked. One by the name of Garry Burns has a personal hatred towards me and has done a lot to hurt me without cause. As you will notice he is writing to the attourney General (The Hon Greg Smith), his own MP the Hon Clover Moore, the Minister of transport, he is getting Clover Moore MP to write to the Minister of transport and pulling all stops out to hurt me. He calls me a racist homophobe bigot (all of which I can comply to as being totally untrue as I am married to a woman from the Phillipines, mix with Africans and Chinese and drove Taxis for close on to 9 years without a lot of problems except from Gary and those in the same line as he is, with the Gay and Lesbian Lobbies? I believe that this is a political attack upon me and I believe that it needs to be ignored As when he put in his statements that went to the ministry of transport, " I should be denied a public vehicle license as I a HOMOPOBIC BIGOT AND A RACIST - totally untrue: this shows his state of mind towards me is not correct and he attacking me is NOT BECAUSE OF MY BEING UNFIT AND NOT PROPER, BUT BECAUSE HE HATES ME TERRIBLY ON A POLITICAL LEVEL AND HAS DECIDED TO GO ALL OUT.; I wish to put this in as a statement to the ministry of transport when I go to the Case in December 19 to have the ADT look at my license. I wish to put that a large number of the attacks upon me from your files on me at the ministry need to be ignored as they are coming from a man who has an agenda to put me down for a political purpose and his own bias and hatred towards me on a personal basis. I would like to put this in as my statements to the ADT cases 32 Mr Sunol's second statement dated 21st December 2013 is set out below. I wish to put in this extra statement to go with my case against the cancellation of my public vehicle authority GPO 922 and the refusal of a bus authority. I wish to add to my present statements the reasons I believe that I am a fit and proper person to drive a public vehicle. I put this alongside the other representations from my files with the ministry of transport 1. I have driven taxi's for over 9 years and I claim that I never made the accusations that were put on me. I have had people make complaints over a number of years and it has got worst(definitely nothing to do with the taxis. A Mr Garry Burns (a serial litigant) has an ongoing campaign of sending in false complaints to the Ministry of transport and other politicians on issues that are nothing to do with my public driver authority. They related back from previous ADT cases on vilification where I have been set up and had false accusations put on me on numerous occasions. You will find some of these letters of this campaign he has mounted on me from pages 1005-998 in the Ministry of transport files which are being used against me. In page 998 he even goes to state that I am a homophobic racists who must not be returned my public vehicles licences. "l take this as pure bias against me worth of being ignored by the ministry of transport" Gary even goes to call me a racist bigot on this entry that should not be given back the right to drive. This man when he did not get what he wanted over the years he has been campaigning against me, he wrote false accusations to the Minister of transport (Gladdy's Bejelkin), Clover Moore politician, Greg Smith Attorney General and a number of other important peoples all which are in the files and he made up stories of lies to get me falsely accused so I can lose my ability to work. This has been an ongoing campaign over a number of years which I will show at the - (l <* time to hurt me and stop me from working, put me down and create me harm on a vindictive and viscous hate campaign ' against me personally. In his letter to the Minister of transport he calls me a racist bigot who is not a fit and proper person and must be not ever given back an authority. I call this a personal attack and if I had the money I would take Gary to the courts as a serial litigant and sue this man I give my own letters for you to look at on pages 962 of the transport files and I give letters from the solicitor that I used Mr Crain Olsen over this on pages 948-950 of these files. I wish to state that I need to re-obtain my authority to be able to get a job, I am a man of 56 years of age and I do not think I have much of a chance to get work in other areas and I had a job in buses before with Happy Cabby but I have not been able to start work due to not being issued the appropriate authority. I would like to have this given to me. As for remedial course. I did not attend before due to an illness where I went into hospital for a couple of days but that has no since been cleared by the appropriate medical authorities. I would like this cancellation over turned and I Thanking you for your assistance in this matter I have already paid the $300 for the remedial training course and I am very willing to undergo this and to this if given the chance to drive a taxi again or go to the job I was offered driving a bus. I send this letter in to go with my other documentation that is already in and ask for it to be considered.
Mr Sunol's oral evidence 33Mr Sunol told the tribunal that he had completed the bus driver's course on 24 June 2013 and was qualified to be a bus driver. He said that he drives very carefully and within the laws. He has no criminal history and no longer worries about people's private lives. He felt that others in the past had egged him on. He did not see how the matters that had been before the Administrative Decisions Tribunal relating to homosexual vilification had anything to do with his taxi or bus driver's authority. He said he would not bring up these issues with passengers in the future. He would correct his behaviour if it was pointed out to him that he had done something wrong. He had been in the military as a younger man and understood that it was necessary to do what he was directed to do. He would now ensure that he did not get into a situation which created dilemmas. He denied that he had got into any difficulty with people from the Newcastle area or that his repute there was poor. 34Under cross-examination he was asked why he had continued to publish homosexually vilifying material after he had apologised and agreed not to publish material and after he had been ordered by the ADT in a number of matters not to publish this material. He was asked why he had continued to publish homosexually vilifying material when he had four decisions from NCAT during 2014 requiring him not to publish the material. 35In response he said he only published what is right and that others had made things up. It was put to him that he had told the RMS that he was going to use the taxi business to promote his ideas. He said he wouldn't have meant it. He was asked about the Railcorp complaint in which nine Railcorp employees in the Newcastle area had said that they would not drive with him. He said that it was the result of one particular woman who hated him. 36He said that the matters that had occurred in February 2009 had happened because he had been working long hours. He would not do this again. It was put to him that he had apologised after suspension in April 2012 and said that he would refrain from undertaking the behaviour but he had again engaged in the vilifying behaviour. He was taken to a number of occasions in relation to homosexually vilifying publications where he had said that he would refrain from engaging in these matters again but that he had been found by the tribunal to have continued to do so. 37When asked about his application for a bus driver authority and his failure to advise the RMS of his previous suspension as a taxi driver he said that other people had filled in the application form for him, although he did acknowledge that it was completed in his handwriting. 38In his submissions Mr Sunol said that he should be considered a fit and proper person. His past difficulties had been a result of being framed and of having been victimised because of his engagement in local politics. He had always helped people. The only things that had been highlighted were the bad things. "Happy Cabby" had wanted to engage him. 39If he were driving a bus he wouldn't have much contact with people and this would limit the difficulties he might face. If he had difficulties on the bus there would be other people there to assist him. He would undertake the remedial course he had been asked to do. He denied that the media publicity in Newcastle about his behaviour in the cab and the vilification matters had affected his reputation. He provided references from people who thought well of him. He has said that he had a good rapport with passengers and it was only a few troublemakers that had caused him difficulty.
Respondent's submissions 40The Respondent noted that the fact of Mr Sunol's financial hardship without driving authorities was not a matter that should be taken into account when assessing his fitness and propriety for the role of bus driver. See Lal v Director-General, Department of Transport [2001] NSWADT 74 41The tribunal should give little weight to the references that Mr Sunol had provided because they did not refer to the matters which had caused him to have his taxi driver authority cancelled or his bus driver authority refused. See Loye -v- Director General, Department of Transport [2000] NSWADT 145 42The issue was - could Mr Sunol be trusted to do what he says he would do? His failure to abide by his undertakings not to repeat his behaviour in relation to vilifying homosexuals was evidence that he could not be trusted to do this. He had repeatedly failed to abide by his undertaking which had led to a series of cases against him in the ADT and NCAT. He could not be trusted to behave appropriately in private with passengers when he was unable to do this in the public sphere with his blogging. He could not be trusted in the confines of the taxi cab or a bus. Passengers should not be subjected to Mr Sunol's views. The evidence was that he could not help himself even when he knew he was open to scrutiny. He had no answer as to why he had continued to publish vilifying material when he knew it wasn't correct and that it was unlawful. 43The tribunal should have difficulty with finding that he was of good repute as he had disobeyed tribunal orders. This must affect his reputation. The vilifying material that he posts continuously must affect his reputation. The tribunal was required by the AIC case - see Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 to make a declaration affirming that he was fit and proper and of good repute. In the circumstances outlined, the tribunal could not do so. It was appropriate for him to be refused his bus driver authority and to have had his taxi driver authority cancelled.
Passenger Transport Act 1990 44Sections 11 and 12 of the PTA set out the matters the RMS must be satisfied of prior to granting a bus driver authority. 45Sections 33 and 33F of the PTA set out the matters that the RMS may rely upon in cancelling a taxi driver authority. 46Section 11(2) of the Passenger Transport Act 1990 states: The purpose of an authority under this Division is to attest: a)that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated; and (ii) in accordance with law and custom 47Section 12 of the Passenger Transport Act 1990 states: (1) Having regard to the purpose of an authority, RMS may grant authorities to persons applying for them. (2) Applicants must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant. 48Section 33 of the Passenger Transport Act 1990 (PT Act) provides as follows: 33. Authorities (1) RMS may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units. (3) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom. (4)........... (5) ............ 49Section 33F of the PT Act states that "Having regard to the purpose of an authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this Division". 50The RMS referred to Mr Sunol's failure in his application for a bus driver authority to refer to his previous suspension as a taxi driver. In this respect his behaviour was contrary to law. Section 54 of the Passenger Transport Act 1990 states: Offences involving credentials: A person who: a) By any false statement or misrepresentation, obtains or attempts to obtain any accreditation, authority or authorisation under this Act or procures or attempts to procure a service contract, or b) Forges or fraudulently alters or uses any such accreditation, authority or authorisation, or c) Fraudulently allows any such accreditation, authority or authorisation to be used by any other person, Is guilty of an offence.
Role of the Tribunal on Review 51The Tribunal's jurisdiction to hear and determine this application for review is found in section 52 of the Passenger Transport Act 1990 and section 63 of the Administrative Decisions Review Act 1997. The authorities accept that the Tribunal's review is for the purpose of determining the correct and preferable decision by way of a merits review. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 at paragraphs 10, 11 and 12. 52The Tribunal may take into account new information put before it on review. See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. 53The Tribunal may affirm, vary, set aside and make a substitute decision or set aside the decision and remit it to the administrator.
Issue for Tribunal 54The issue in these proceedings is whether Mr Sunol is of good repute and in all other respects a fit and proper person to drive a bus and a taxicab, and has the requisite responsibility and aptitude to do so as set out in sections 11 and 33 of the PTA.
Findings of fact 55The tribunal finds that Mr Sunol was subject to a number of complaints from passengers about his conduct as a taxi driver - as set out in the Internal Review Reasons. Mr Sunol did not substantially contradict the fact of these customer complaints in giving his evidence. The tribunal finds that Mr Sunol's taxi driver's authority was suspended in February 2009, in July 2012 and again on 29th November 2012. The tribunal finds that in applying for his bus driver's authority he did not declare these suspensions when he was required to. 56The tribunal finds that Mr Sunol has been subject of findings before the ADT and the NCAT in relation to homosexual vilification contrary to the Anti-Discrimination Act. 57The tribunal finds that Mr Sunol has given apologies and made undertakings not to repeat the vilifying behaviour - but has in fact dome so. 58The tribunal finds that Mr Sunol has been ordered by the ADT not to repeat vilifying behaviour - but he has done so prompting further findings by the ADT and NCAT.
Findings on the Law and Evidence 59The issue in this case is whether the decisions to refuse Mr Sunol's authority to drive buses and the cancellation of his taxi driver's authority was the correct and preferable one, having regard to whether Mr Sunol is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a public passenger vehicle.
Fit and Proper 60Fitness and propriety was defined in the matter of Hughes & Vale in the High Court as having 3 components -"honesty, knowledge and ability." Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at para 9. 61In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": "In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." 62Determining whether a person meets the requirement of being fit and proper is the role of the decision maker. The term "fit and proper person" was discussed by Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63]. The Chief Justice said that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 63This Tribunal's synthesis of these requirements in this matter is that an Applicant's fitness and propriety must be determined in the light of the role the Applicant is to undertake. The Tribunal must consider the evidence before it about the Applicant's honesty, knowledge and ability as it relates to the specific role. It is a determination to be made by the decision maker taking into account and weighing up matters both contrary to and in favour of the Applicant. 64In the matter of Saadieh, Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal built on the principles set out in Bond's case and set out the following factors to be considered by the decision maker in determining a person's suitability and fitness to hold a taxi-cab authority:
Decisions 75In matter number 133275 - Mr Sunol's application to review the refusal of a bus driver's authority - the Respondent's decision is affirmed. 76In matter number 1420001 - Mr Sunol's application to review the cancellation of his taxi driver's authority - the Respondent's decision is affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2014
Sunol
Roads and Maritime Services